On Saturday, the political world was thrown into chaos. The great jurist Antonin Scalia died of a heart attack and now the equilibrium of our entire legal system has been shattered. For now, as long as his seat is vacated, the Supreme Court looks to be divided 4-4 in some crucial upcoming cases and if President Obama gets his way, the Court will have a 5-4 liberal majority for the first time in 25 years (since Clarence Thomas replaced Thurgood Marshall). America lost, on Saturday, one of the finest judicial minds in American history and certainly the funniest (probably the only one who could make legal opinions remotely enjoyable to read). For conservatives and Republicans, the loss of Antonin Scalia is incalculable. He was the true intellectual anchor of the conservative wing and the founder of the now-dominant approach to judicial philosophy on the political right- Originalism. Obviously, for President Obama, Democrats, and progressives, the loss of Scalia represents a golden opportunity to solidify their grasp on the Supreme Court. The Court’s liberal bloc (Breyer, Ginsburg, Sotomayor, and Kagan) has occasionally poached Kennedy or Roberts on key cases in recent years, but they will not need to do that if a genuinely progressive justice is on the Court. Needless to say, the stakes could hardly be higher in this battle and both sides are arming themselves for what could be a year-long fight.
Shortly after the announcement of Scalia’s death, the Republicans began to mount their opposition to the candidate, who has not yet been named. I think this was a tactical mistake, especially since nearly everyone, beginning with Mitch McConnell, has tried to justify obstructionism by claiming that the American people should choose the next justice and that it is somehow not the norm for a president to try to successfully nominate someone to the Court in their final year. This is neither constitutionally nor historically the case. It is true that it is rare, but this rarity has nothing to do with the election cycle. If it did, Anthony Kennedy would not be on the Court right now. And while Abe Fortas failed to be confirmed in LBJ’s last year, this was due entirely to ethics problems he was confronting, not the impending presidential election. And the Constitution is crystal clear that the sitting president absolutely has the right to nominate whomever he/she desires. I have no idea why the Senate GOP (and national GOP, for that matter) decided it would be best to build the case for opposing the president’s nominee on the back of such fallacious arguments.
What they should have done is simply waited for Obama to make the first move. They should have announced that they would do everything in their power to ensure that Scalia’s successor is not someone who would negate and reverse everything Scalia has accomplished, but that they would allow the president to fulfill his Constitutional role by allowing him to nominate someone and giving the nominee a chance to make his or her case before the Senate. That would have put the ball entirely in Obama’s court. Obama would have been the one who would be forced to decide whether to fight a long, bloody battle with Congress or to rise above partisan politics and name a successor worthy of Scalia’s legacy in the eyes of the Republican majority. If the president picked the first option, public opinion might actually favor the Republicans since it would appear Obama was the one playing partisan games and has no desire to actually fill the seat. If he picked the latter option, everyone wins. But inventing a new doctrine of Constitutional procedures based on the electoral cycle only serves to make the GOP look bad, especially since the nominee has not even been named yet.
Right now, Obama holds most of the cards. The GOP looks bad in the press and he looks like the one following the Constitution. He has several options right now, all but one of which lead to a victory for him. His first option (which is the one I think he will take) is to nominate a progressive to replace Scalia and force the GOP to reject his nomination. In the interim, the liberal bloc of the Court will probably win on several key votes coming up (union dues and abortion cases) since ties in the Court are broken by deferring to the lower court decision. And while his nominee awaits his/her confirmation in the Senate, the GOP’s numbers will continue to tank as THEY appear to be the ones playing partisan games. Not confirming his nominee could cost the Republicans both the Senate and White House come November, which means that Obama can easily win a war of attrition by simply pushing this nomination off to the next Senate and President.
Obama’s second option is to nominate someone similar in ideology to Anthony Kennedy. Alex Kozinski of the Ninth Circuit comes to mind, but his computer porn scandal disqualifies him from serious consideration. A relatively moderate or center-right choice (Brian Sandoval fits this bill) might be enough to placate serious Republicans in the Senate and ensure that Scalia’s seat is filled by the end of this session of Congress and Obama’s presidency. The upside (from Obama’s perspective) would be that the Court would still be dragged in a leftward direction (especially on social issues) and he would earn some renown for rising above partisan politics by nominating someone acceptable to the Senate majority. Moreover, I would expect that confirming any Obama nominee would anger the Republican base so much that the Democrats still end up winning the Senate and White House in November. Especially since there is a sizable chance the next president will pick the replacement for Anthony Kennedy, this would not seem to me a major setback for progressives. Sandoval, in particular, would be a brilliant tactical move for Obama because it would remove from the chess board a rook lurking in their future who could cause serious headaches on the national scale. And finally, if Obama were to nominate someone like Sandoval, he would be even better off if the Senate were to not confirm him- the Republicans would look like petulant, uncompromising ideologues and Obama the statesman. This move could be a brilliant bait-and-switch for Obama, a trap he can set that gives the Republican Senate no avenues for victory. At worst, Obama would come out on top by replacing a conservative stalwart with a relatively moderate justice and by removing the threat Sandoval poses to the Democrats in the future as a presidential candidate.
A third option is for Obama to do nothing. He, obviously, will not take that option as he would not be fulfilling his constitutional duties and he would be ceding control of the narrative to the Republican Senate, thus seriously jeopardizing his party’s chances in November. There is nothing to gain and everything to lose by this strategy.
Finally, Obama could really throw a monkey wrench into the system by nominating Senator Ted Cruz. There is actually a compelling argument for this strategy. First, Obama would not upset any ideological balance by nominating Cruz. Cruz is essentially the same as Scalia in terms of positions and approach to jurisprudence. Knowing that the next president will likely replace 3 justices (including the crucial swing vote, Anthony Kennedy), it is of utmost importance to the president to ensure that his party controls not only the White House, but also the Senate. Therefore, a second reason that this strategy makes sense is that Cruz is a leading contender for the Republican nomination for president, BUT the leader is one Donald Trump, a man whose base of voters does not differ too greatly from Cruz’s base. As such, removing Cruz from the race would increase the likelihood that Trump gets the GOP nomination when a sizable portion of Cruz's supporters defect to him (if for no other reason than immigration). In turn, this would all but hand the White House to the Democrats for another four years AND sink the GOP’s hopes of winning Senate races in New Hampshire, Pennsylvania, Ohio, Illinois, and Wisconsin. Thirdly, I think the Senate would confirm Cruz and here’s why- they (his colleagues) would be quite eager to get Cruz out of their hair once and for all. They would, I think, happily relegate him to a relatively isolated office where he can be as divisive as he wants to be and it will not reflect poorly on them. Finally, Cruz is actually quite qualified for this position. He has clerked for a Supreme Court Chief Justice, argued cases before the Supreme Court, and has a law degree from Harvard Law School. In all honesty, I think the Supreme Court is where he belongs. As an added bonus, Obama would look like a statesman for nominating someone so diametrically opposed to him in tribute to Justice Scalia. But should the Democrats win in November, the pending replacement of Anthony Kennedy would relegate Cruz to a loud, but lonely voice as one of nine and part of the minority bloc. In the short-term, everyone wins, in the long-run, progressives win.
In conclusion, the Republicans are really stuck between a rock and a hard place here. Playing hardball, they risk losing the White House and Senate by proving they cannot govern or compromise. But if they approve any candidate the president offers, then they might just as easily lose both by permanently turning the base against them. President Obama holds all the cards right now (save that the GOP is the Senate majority). It all depends, however, on who the president nominates. If he nominates a liberal, the Republicans could win by refusing to confirm and painting the president as uninterested in compromise and statesmanship, but interested in insulting the memory of Scalia by nominating someone diametrically opposed to his principles and philosophy. If he nominates a moderate or conservative, the better option might be to confirm his choice. My guess is that everyone defects here (meaning that neither side cooperates) and we will have a year-long battle that leaves both sides bloodied and bruised. Remember, the Senate does not have to confirm, but I think they should give the president a chance to rise above petty partisanship and nominate someone worthy of Scalia’s legacy. No matter what happens, though, the country lost one of its greatest jurists of all time.
Shortly after the announcement of Scalia’s death, the Republicans began to mount their opposition to the candidate, who has not yet been named. I think this was a tactical mistake, especially since nearly everyone, beginning with Mitch McConnell, has tried to justify obstructionism by claiming that the American people should choose the next justice and that it is somehow not the norm for a president to try to successfully nominate someone to the Court in their final year. This is neither constitutionally nor historically the case. It is true that it is rare, but this rarity has nothing to do with the election cycle. If it did, Anthony Kennedy would not be on the Court right now. And while Abe Fortas failed to be confirmed in LBJ’s last year, this was due entirely to ethics problems he was confronting, not the impending presidential election. And the Constitution is crystal clear that the sitting president absolutely has the right to nominate whomever he/she desires. I have no idea why the Senate GOP (and national GOP, for that matter) decided it would be best to build the case for opposing the president’s nominee on the back of such fallacious arguments.
What they should have done is simply waited for Obama to make the first move. They should have announced that they would do everything in their power to ensure that Scalia’s successor is not someone who would negate and reverse everything Scalia has accomplished, but that they would allow the president to fulfill his Constitutional role by allowing him to nominate someone and giving the nominee a chance to make his or her case before the Senate. That would have put the ball entirely in Obama’s court. Obama would have been the one who would be forced to decide whether to fight a long, bloody battle with Congress or to rise above partisan politics and name a successor worthy of Scalia’s legacy in the eyes of the Republican majority. If the president picked the first option, public opinion might actually favor the Republicans since it would appear Obama was the one playing partisan games and has no desire to actually fill the seat. If he picked the latter option, everyone wins. But inventing a new doctrine of Constitutional procedures based on the electoral cycle only serves to make the GOP look bad, especially since the nominee has not even been named yet.
Right now, Obama holds most of the cards. The GOP looks bad in the press and he looks like the one following the Constitution. He has several options right now, all but one of which lead to a victory for him. His first option (which is the one I think he will take) is to nominate a progressive to replace Scalia and force the GOP to reject his nomination. In the interim, the liberal bloc of the Court will probably win on several key votes coming up (union dues and abortion cases) since ties in the Court are broken by deferring to the lower court decision. And while his nominee awaits his/her confirmation in the Senate, the GOP’s numbers will continue to tank as THEY appear to be the ones playing partisan games. Not confirming his nominee could cost the Republicans both the Senate and White House come November, which means that Obama can easily win a war of attrition by simply pushing this nomination off to the next Senate and President.
Obama’s second option is to nominate someone similar in ideology to Anthony Kennedy. Alex Kozinski of the Ninth Circuit comes to mind, but his computer porn scandal disqualifies him from serious consideration. A relatively moderate or center-right choice (Brian Sandoval fits this bill) might be enough to placate serious Republicans in the Senate and ensure that Scalia’s seat is filled by the end of this session of Congress and Obama’s presidency. The upside (from Obama’s perspective) would be that the Court would still be dragged in a leftward direction (especially on social issues) and he would earn some renown for rising above partisan politics by nominating someone acceptable to the Senate majority. Moreover, I would expect that confirming any Obama nominee would anger the Republican base so much that the Democrats still end up winning the Senate and White House in November. Especially since there is a sizable chance the next president will pick the replacement for Anthony Kennedy, this would not seem to me a major setback for progressives. Sandoval, in particular, would be a brilliant tactical move for Obama because it would remove from the chess board a rook lurking in their future who could cause serious headaches on the national scale. And finally, if Obama were to nominate someone like Sandoval, he would be even better off if the Senate were to not confirm him- the Republicans would look like petulant, uncompromising ideologues and Obama the statesman. This move could be a brilliant bait-and-switch for Obama, a trap he can set that gives the Republican Senate no avenues for victory. At worst, Obama would come out on top by replacing a conservative stalwart with a relatively moderate justice and by removing the threat Sandoval poses to the Democrats in the future as a presidential candidate.
A third option is for Obama to do nothing. He, obviously, will not take that option as he would not be fulfilling his constitutional duties and he would be ceding control of the narrative to the Republican Senate, thus seriously jeopardizing his party’s chances in November. There is nothing to gain and everything to lose by this strategy.
Finally, Obama could really throw a monkey wrench into the system by nominating Senator Ted Cruz. There is actually a compelling argument for this strategy. First, Obama would not upset any ideological balance by nominating Cruz. Cruz is essentially the same as Scalia in terms of positions and approach to jurisprudence. Knowing that the next president will likely replace 3 justices (including the crucial swing vote, Anthony Kennedy), it is of utmost importance to the president to ensure that his party controls not only the White House, but also the Senate. Therefore, a second reason that this strategy makes sense is that Cruz is a leading contender for the Republican nomination for president, BUT the leader is one Donald Trump, a man whose base of voters does not differ too greatly from Cruz’s base. As such, removing Cruz from the race would increase the likelihood that Trump gets the GOP nomination when a sizable portion of Cruz's supporters defect to him (if for no other reason than immigration). In turn, this would all but hand the White House to the Democrats for another four years AND sink the GOP’s hopes of winning Senate races in New Hampshire, Pennsylvania, Ohio, Illinois, and Wisconsin. Thirdly, I think the Senate would confirm Cruz and here’s why- they (his colleagues) would be quite eager to get Cruz out of their hair once and for all. They would, I think, happily relegate him to a relatively isolated office where he can be as divisive as he wants to be and it will not reflect poorly on them. Finally, Cruz is actually quite qualified for this position. He has clerked for a Supreme Court Chief Justice, argued cases before the Supreme Court, and has a law degree from Harvard Law School. In all honesty, I think the Supreme Court is where he belongs. As an added bonus, Obama would look like a statesman for nominating someone so diametrically opposed to him in tribute to Justice Scalia. But should the Democrats win in November, the pending replacement of Anthony Kennedy would relegate Cruz to a loud, but lonely voice as one of nine and part of the minority bloc. In the short-term, everyone wins, in the long-run, progressives win.
In conclusion, the Republicans are really stuck between a rock and a hard place here. Playing hardball, they risk losing the White House and Senate by proving they cannot govern or compromise. But if they approve any candidate the president offers, then they might just as easily lose both by permanently turning the base against them. President Obama holds all the cards right now (save that the GOP is the Senate majority). It all depends, however, on who the president nominates. If he nominates a liberal, the Republicans could win by refusing to confirm and painting the president as uninterested in compromise and statesmanship, but interested in insulting the memory of Scalia by nominating someone diametrically opposed to his principles and philosophy. If he nominates a moderate or conservative, the better option might be to confirm his choice. My guess is that everyone defects here (meaning that neither side cooperates) and we will have a year-long battle that leaves both sides bloodied and bruised. Remember, the Senate does not have to confirm, but I think they should give the president a chance to rise above petty partisanship and nominate someone worthy of Scalia’s legacy. No matter what happens, though, the country lost one of its greatest jurists of all time.
RSS Feed
